Southampton Town ZBA Denies Eruv Application

The Southampton Town Zoning Board of Appeals has denied a variance that would have permitted the establishment of a symbolic Jewish religious boundary in Westhampton—a ruling that could complicate ongoing efforts to create an even larger boundary, called an eruv, that would also encompass parts of Westhampton Beach and Quogue villages.

ZBA Chairman Herbert Phillips, Vice Chairman Adam Grossman and board members Keith Tuthill, David Reilly and Brian DeSesa all voted in favor of the decision, while Ann Nowak abstained. Denise O’Brien was absent.

Mr. Grossman explained on Friday that the applicant, the East End Eruv Association (EEEA), could appeal the decision, or ask the Southampton Town Board to consider its appeal.

Michael McCarthy of the firm McCarthy & Reynolds in Huntington, one of the attorneys representing the EEEA, said the organization has not yet decided whether it will appeal the ruling.

“I wholeheartedly disagree with the decision,” Mr. McCarthy said. “It’s disappointing, but it was not unexpected. It’s what the EEEA anticipated, but they were hoping it was not going to happen.”

The other lawyer representing the EEEA, Robert Sugarman of Weil, Gotshal and Manges LLP in Manhattan, did not return calls this week.

The EEEA filed the application in December, asking the zoning board to reverse Chief Building Inspector Michael Benincasa’s prior determination that the thin wooden strips that would mark the eruv’s boundaries, called “lechis,” are signs and therefore prohibited to be placed on poles in the town. The application was seeking permission to install 28 lechis on 15 utility poles that sit in the public rights-of-way in Westhampton, including those off Montauk Highway, Summit Boulevard and Tanners Neck Lane.

The application also sought a variance that would permit the lechis in the case that the ZBA upheld Mr. Benincasa’s ruling.

In its decision, the zoning board stated that the EEEA filed its appeal of Mr. Benincasa’s determination outside of the permitted 60-day window; Mr. Benincasa issued his determination on April 17, 2012, and the appeal was filed on December 4, 2012.

The ruling also states that the applicant failed prove that the zoning restrictions have caused unnecessary hardship, and that the variance, if granted, would not alter the character of the neighborhood. The town code prohibits signs on utility poles in order to reduce clutter and distractions, and to “promote the free flow of traffic and public safety.” The decision also states that granting the variance would be in “direct conflict” with those provisions.

Additionally, it states that “the relief requested is motivated by the personal desire of the applicant’s members to be freed from the prescriptions of religious law by securing a variance of secular law,” and that such motivation is a personal matter that “cannot constitute the ‘unnecessary hardship’ redressable by a zoning board through its variance powers.” The board also expressed concern for the precedent that granting the variance would create, stating that the deviation from the town code would be too widespread.

If permitted, the boundary would have allowed observant Jews to leave their homes on Saturdays and holy days while carrying items, such as car keys or water bottles, or pushing wheelchairs and strollers, activities that are otherwise prohibited by Jewish Law on the Sabbath. The Hampton Synagogue in Westhampton Beach is the only house of worship that would benefit from the eruv’s creation.

The EEEA is seeking the establishment of the boundary in an area that includes parts of Quogue and Westhampton Beach villages, though only the area in Westhampton is subject to review by the town’s zoning board. In 2012, the Quogue Village Board rejected a similar application filed by the EEEA that sought permission from the village to install 48 lechis in that municipality. The basis for Quogue’s rejection, according to its decision, is that the board felt that allowing the lechis would violate the Establishment Clause of the U.S. Constitution, which prohibits any governing body from favoring one religion over another.

During the ZBA hearings on the application, some Jewish residents from the area stated that the creation of the eruv would allow them to spend more time with their family and friends, and attend the synagogue services. But not all Jews are in favor of the eruv.

In 2008, about 300 local residents formed the Jewish People Opposed to the Eruv, a not-for-profit. Jonathon Sinnreich, an attorney who represents the organization, said during the hearings that its members belong to Jewish denominations that reject the concept of an eruv. He also said they have a right “not to be confronted on a daily basis as they go about their business in their local neighborhoods by the permanent display on multiple public utility poles of a deeply religious and sectarian symbol of a particular religious belief that they do not share, and in some cases find offensive,” according to the ZBA decision.

The EEEA has sued Southampton Town, as well as Quogue and Westhampton Beach villages, alleging that the three violated the constitutional rights of its group members by interfering with negotiations with the Long Island Power Authority and Verizon, which own the utility poles in question. That case has not been decided.